Equality Advisory & Support Service

Age is defined in the Equality Act 2010 (the Act) by reference to a person’s age group.
In the Act a reference to a person with the protected characteristic of age means a person of a particular age group.

Where the Act refers to people who share the protected characteristic of age, it means people who are in the same age group.

‘Age group’ can mean people of the same age or people within an age range. Age groups can be wide (e.g. people under 50; under 18’s) and they can also be narrow (e.g. people in their mid-30’s; people born in 1966).

The definition of ‘age group’ is intended to be flexible and its definition will often depend upon the circumstances in which any alleged discriminatory treatment occurs. For example a person who is 55 may belong to the following age groups:-

• People in their 50s
• Middle-aged people
• People over 45
• Under 60s
• People of working age
• 55 year olds
• Baby Boomers
• Older workers

Example: A male worker aged 25 could be viewed as sharing the protected characteristic of age with a number of different age groups. These might include 25 year olds; the under 30’s; the over 20’s and the younger workers.

Example: A female could share the protected characteristic of age with the following groups: 86 year olds; over80’s; over 65’s; pensioners; senior citizens; older people and the elderly.

The Equality Act 2010 (the Act) defines a disabled person as being a person who has:-

“a physical or mental impairment that has a substantial and long term adverse effect on his or her ability to carry out normal day to day activities”.

Persons automatically deemed to be disabled

Some people will not have to meet the definition of disability as the Act classifies people with certain impairments as being automatically deemed disabled and thus protected by the Act.

The Act states that a person who has cancer, HIV infection or multiple sclerosis (MS) is a disabled person. This means people with such impairments are effectively covered from the point of diagnosis and do not need to show that the effects of the cancer, HIV infection or MS have a substantial and long term adverse effect on their ability to carry out normal day to day activities.

The Act also states that a person who is certified as being blind, severely sight impaired or sight impaired or partially sighted by a consultant ophthalmologist is deemed to be a disabled person.

Excluded impairments

In a similar vein to the fact that certain impairments are automatically deemed disabilities the Act also prescribes certain impairments that are not to be deemed as a disability. Those conditions are as follows:-

• addiction to, or dependency on, alcohol, nicotine or any other substance;
• seasonal allergic rhinitis (i.e. hayfever);
• tendency to set fires, steal or the physical or sexual abuse of other persons;
• exhibitionism; or
• voyeurism

Meaning of mental or physical impairment

The first element of the definition of disability is that the person must have a physical or mental impairment. It is not necessary to consider how a physical or mental impairment is caused and it may not always be necessary to categorise a condition as being either physical or mental

Meaning of substantial adverse effect

The second element of the definition of disability is that the effects of the physical or mental impairment must be deemed to be substantial. The Act states that the adverse effects caused by an impairment will be considered substantial if the effects are more than minor or trivial

When considering whether the effects of an impairment are substantially adverse account should be taken of the following relevant factors:-

• the amount of time it takes a person to carry out a day to day activity;
• the way in which an activity is carried out;
• the cumulative effects of the impairment;
• the manner in which behaviour could be reasonably modified to prevent or reduce the effects of an impairment;
• the effects of the environment;  and
• where an impairment is subject to treatment or correction, the effects of the impairment as it would be but for the treatment or correction

Example: A man works in a warehouse, loading and unloading heavy stock. He develops a long-term heart condition and no longer has the ability to lift or move heavy items of stock at work. Lifting and moving such heavy items is not a normal day-to-day activity. However, he is also unable to lift, carry or move moderately heavy everyday objects such as chairs, at work or around the home. This is an adverse effect on a normal day-to-day activity. He is likely to be considered a disabled person for the purposes of the Act. (Equality Act 2010, Explanatory Notes)

Example: A ten year old child has cerebral palsy. The effects include muscle stiffness, poor balance and uncoordinated movements. The child is still able to do most things for himself, but does get tired very easily and it is harder for him to accomplish tasks like eating and drinking, washing and getting dressed. Although he has the ability to carry out every day activities such as these, everything takes longer compared to a child of a similar age who does not have cerebral palsy. This amounts to a substantial adverse effect. (Equality Act, Office for Disability Issues)

Meaning of long term

The third element of the definition of disability is that the physical or mental impairment must be long-term. The Act states that an impairment is considered to be long-term if the impairment is one:-

• which has lasted at least 12 months; or
• where the total period for which is lasts, from the time of the first onset, is likely to be at least 12 months; or
• which is likely to last for the rest of the life of the person effected

When considering whether an impairment is likely to last 12 months then the term ‘likely’ should be interpreted as meaning that it could well last 12 months, rather that it is more probable than not to last 12 months.

When considering whether an impairment is long-term account should also be taken of the reoccurring effects of an impairment. In circumstances where, due to the nature of the condition, the substantial adverse effect on a person’s ability to carry out normal day-to-day activities ceases then the substantial adverse effect is treated as continuing if it is likely to reoccur, with ‘likely’ again meaning that the substantial adverse effects could well reoccur. However the likelihood of reoccurrence needs to be considered in light of what a person could reasonably be expected to do to prevent a reoccurrence.

Example: A woman has had rheumatoid arthritis for the last three years and has difficulty carrying out day-to-day activities such as walking undertaking household tasks and getting washed and dressed. The effects are particularly bad during autumn and winter months when the weather is cold and damp. Symptoms are mild during the summer months. The effect on ability to carry out normal day-to-day activities fluctuates according to the weather conditions, but because the effect of the impairment is likely to recur, this person meets the definition of disability requirement on the meaning of 'long term'.

Meaning of day to day activities

The final element of the definition of disability is that the physical or mental impairment must adversely affect a person’s ability to carry out normal day-to-day activities.

Here the Act does not define the meaning of day-to-day activities, and it is not possible to provide an exhaustive list of what is to be regarded as a day to day activity. However account should be taken of the following principles:-

• The term normal day to day activities is not intended to include activities which are normal only for a particular person, or a small group of people;
• A normal day to day activity does not necessarily have to be one that is carried out by the majority of people;
• It could still be a day to day activity even if it is one that is predominantly carried out by a particular gender;
• Certain activities are not classed as day to day activities where they are specialist or particular to a certain type of work, hobby, sport or pastime; however activities that are generic to a wide range of work, hobby, sport or pastime, such as (but not limited to) sitting, standing, walking, writing, talking, typing and lifting and moving everyday objects could be deemed day to day activities
• An impairment does not have to directly prevent someone from carrying out a day to day activity. It is enough that the impairment has a substantial effect on how or for how long the day to day activity is carried out.

Example: A young woman has developed colitis, an inflammatory bowel disease. The condition is a chronic one which is subject to periods of remissions and flare-ups. During a flare-up she experiences severe abdominal pain and bouts of diarrhoea. This makes it very difficult for her to travel or go to work. This has a substantial adverse effect on her ability to carry out normal day-to-day activities. She is likely to be considered a disabled person for the purposes of the Act. (Equality Act 2010, Explanatory Notes)

Past disabilities

A person who is no longer disabled by virtue of them no longer meeting the definition of disability can still be deemed to be disabled and thus have the protection of the Act as the Act states that people who have had past disabilities may be covered.

In order to be covered a person would have to show that when their impairment manifested itself it would have satisfied the definition of disability.

Additionally anyone whose name was on the register of disabled persons under provisions of the Disabled Persons (Employment) Act 1944 will be treated as having had a disability in the past.

Progressive conditions

People who are deemed to have progressive conditions (such as, but not limited to, systemic lupus erythmatosis, dementia, rheumatoid arthritis and motor neurone disease) do not have to meet the full definition of disability.

Under the Act a person with a progressive condition is to be regarded as having an impairment that has a substantial adverse effect on their ability to carry out normal day to day activities before it does so.

The effects of a progressive condition will be deemed to have a substantially adverse effect from the point at which it begins to have some effect on the person’s ability to carry out normal day to day activities, provided that the effect is likely to become substantial at some point in the future (again ‘likely’ means could well happen).

Severe disfigurements

The Act also states that where an impairment consists of a severe disfigurement, the impairment it is to be regarded as automatically having a substantial adverse effect on a person’s ability to carry out normal day to day activities; there is no need to show that the severe disfigurement actually has such an effect. However the other elements of the definition of disability would still need to be satisfied.

For further detailed guidance and for illustrative examples please see the “Equality Act 2010 - Guidance on matters to be taken into account in determining questions relating to the definition of disability” published by the Office for Disability Issues - http://odi.dwp.gov.uk/docs/wor/new/ea-guide.pdf.

Explanatory Notes

http://www.legislation.gov.uk/ukpga/2010/15/notes/contents

The Equality Act 2010 (the Act) states that a person has the protected characteristic of Marriage and Civil Partnership if they are married or in a civil partnership.

Under the Act people who are married or in a civil partnership share the protected characteristic of Marriage and Civil partnership.

Only people who are married or in a civil partnership have the protected characteristic
People who are unmarried or single do not have the protected characteristic of Marriage and Civil Partnership.

Examples: A person who is engaged to be married is not married and therefore does not have this protected characteristic.

People who intend to marry or form a civil partnership, or who have divorced or had their civil partnership dissolved would also not have the protected characteristic of Marriage and Civil Partnership

Example: A divorcees or a person whose civil partnership has been dissolved is not married or in a civil partnership and therefore does not have this protected characteristic.

‘Marriage’ covers the formal union of a man and woman which is legally recognised in the UK

‘Civil Partnership’ covers registered civil partnerships under the Civil Partnership Act 2004 and also includes civil partnerships registered outside the UK

Example: An employer offers ‘death in service’ benefits to the spouses and civil partners of their staff members. A worker who lives with her partner, but is not married to him, wants to nominate him for death in service benefits. She is told she cannot do this as she is not married. Because being a cohabitee is not a protected characteristic, she would be unable to make a claim of discrimination. (Equality and Human Rights, Code of Practice)

The Equality Act 2010 (the Act) states that Pregnancy and Maternity is a protected characteristic. The Act extends the protection to cover discrimination in relation to public functions, education and associations, where no such protection previously existed.

Under the Work provisions of the Act a woman is protected from being discriminated against because of pregnancy and maternity if the discriminatory treatment occurs in what is known as the ‘protected period’.

The protected period starts when a woman becomes pregnant and continues until the end of her maternity leave or until she returns to work if that is earlier.

The protected period in relation to the pregnancy can also end for a number of reasons for example when she returns to work after giving birth, if that is earlier. The other issue to remember is if the unfavourable treatment in work occurred outside of the protected period this may be considered as sex discrimination.

Example: An employer must not demote or dismiss an employee, or deny her training or promotion opportunities, because she is pregnant or on maternity leave.

Example: An employer must not take into account an employee’s period of absence due to pregnancy related illness when making a decision about her employment.

Pregnancy and Maternity is also a relevant protected characteristic under the non-work provisions of the Act, i.e. under the Services & Public Functions; Premises; Education; and Associations provisions.

Examples:

• A café owner must not ask a woman to leave his/her café because she is breast-feeding her baby.
• A shopkeeper must not refuse to sell cigarettes to a woman because she is pregnant.
• A school must not prevent a pupil taking an exam because she is pregnant.

(Equality and Human Rights Commission, Code of Practice)

For further information on discrimination because of Pregnancy and Maternity in both work and non-work situations click 'Select' above.

Under the Equality Act 2010 (the Act) Race includes:-

• colour
• nationality
• ethnic or national origins

The Act states that a person has the protected characteristic of race if they fall within a racial group. The Act defines a racial group as a group of persons defined by race (i.e. by their colour, nationality or ethnic or national origins).

Example: A Gypsy couple are refused service in a pub that displays on its door a ‘No Gypsies or Travellers’ sign’. It is obvious from the notice on the door and the treatment the Gypsy couple receive that their less favourable treatment is because of race.

Nationality

This is the specific legal relationship between an individual and the state through birth or naturalisation (i.e. citizenship). Nationality is distinct from national origin.

Ethnic Origin

The Act protects people who belong to a racial group, which includes people who belong to an ethnic group. An ethnic group is a group which regards itself and is regarded by others as a distinct and separate community.

Case law holds that there are several defining characteristics of an ethnic group. For an ethnic group to be covered by the Act the group must have:-

• a long shared history;
• a cultural tradition of its own; and
• one or more of the following characteristics; a common language, a common literature; a common religion; a common geographical origin; or be an oppressed group; or a minority group

The courts have held that the following groups are ethnic groups and therefore people who belong to these groups are protected by the Act:-

• Sikhs
• Jews
• Romany Gypsies
• Irish Travellers
• Scottish Gypsies
• Scottish Travellers

Example: A rule that employees or pupils must not wear headgear could exclude Sikh men and boys who wear a turban or Jewish men or boys who wear a yarmulke, in accordance with practice within their racial group (Equality and Human Rights Commission, Code of Practice)

Under the Equality Act 2010 (the Act) a person who has the protected characteristic of religion or belief is a person who has a particular religion or belief or is a person who belongs to a group of people who are of the same religion or belief.

Religion

Religion means any religion and also includes a lack of religion. The term includes the more commonly recognised religions but may also cover less mainstream or less well-known religions, providing the religion has a clear structure and belief system.

Example: At an interview a Christian woman refers to the Church which she regularly attends. Although she has the skills to do the job, the interviewer does not employ her, because she does not like the idea of working alongside someone who believes in God.

Belief

Belief means any religious or philosophical belief and also includes a lack of belief.
A religious belief goes beyond beliefs about and adherence to a religion or its central articles of faith and may vary from person to person.

A philosophical belief may also be covered by the Act. The courts have established a legal test for what amounts to a philosophical belief and as such for a philosophical belief to be protected under the Act it must:-

• be genuinely held;
• be a belief and not an opinion or viewpoint based on the present state of information available;
• be a belief as to a weighty and substantial aspect of human life and behaviour;
• attain a certain level of cogency, seriousness, cohesion and importance; and
• be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others

Examples of philosophical beliefs are humanism, atheism and climate change

Example: A manager at a religious charity gives his receptionist the sack when he finds out that she no longer has religious beliefs. This is likely to be seen as discrimination, as the receptionist does not need to have religious beliefs in order to carry out her job.

The Equality Act 2010 (the Act) states that a man and a woman, as well as persons of the same sex, have the protected characteristic of sex.

A man and a woman as well as men and women are protected by the Act. However, the protected characteristic of sex does not include reassigned gender or sexual orientation, as these are protected characteristics in their own right.

Example:  A woman working in an accounts department is transferred from her post against her will because she is having a relationship with a colleague. If the employer does not transfer men in the same circumstances this transfer may amount to sex discrimination.

The Equality Act 2010 (the Act) states that sexual orientation means a person’s sexual orientation towards:-

• persons of the same sex;
• persons of the opposite sex; or
• persons of either sex

The Act protects persons of a particular sexual orientation and persons who are of the same sexual orientation.

The Act protects not just a person’s stated sexual orientation but also manifestations of that sexual orientation such as appearance, the places they visit or the people they associate with.

Legal protection from discrimination on the basis of sexual orientation applies to everyone, whatever their sexual orientation.

Sexual orientation discrimination includes being treated less favourably because:

• you are lesbian, gay, bisexual or straight
• people think you are lesbian, gay, bisexual or straight, or
• you are associated with someone who is lesbian, gay, bisexual or straight, for example a friend, relative or colleague.

The law applies to direct and indirect discrimination as well as to harassment and victimisation (see section on prohibited conducts for explanation). The law applies to the private, public and not-for-profit sectors.

Examples: A female worker was being interviewed for promotion during the interview process she mentions that she has a female partner. Although she has all the skills and competences required for the promotion the organisation does not offer her the promotion because she is a lesbian. This would amount to sexual orientation discrimination.

Example: A landlord asks a letting agent to say that their flat to let has been taken as a lesbian or gay couple ask about renting it. If the letting agent agrees, both the landlord and the letting agent would be guilty of discrimination by sexual orientation.

Part 1: Definition of Work

As well as covering job applicants and people employed under a contract of employment the Work provisions of the Equality Act 2010 (the Act) also apply to a variety of other work-related situations, such as:-

• Apprenticeships
• People working under a contract personally to do work
• Contract workers
• Police Officers
• Service in the Armed Forces
• Partners in Firms
• Barristers
• Advocates
• Officer Holders
• Qualifications Bodies
• Trade Organisations
• Employment Services
• Local Authority Members
• Crown Employment
• Member of the House of Commons Staff
• Member of the House of Lords Staff
• Offshore work
• Work on ships and hovercrafts

Exceptions

The Act contains several exceptions which, in certain prescribed circumstances, permit discrimination that would otherwise have been prohibited under the Work provisions of the Act. These exceptions are listed below*.

*The list is intended for illustrative purposes only and you are advised to contact the EASS Helpline for further and more detailed advice on the specifics of and application of the exceptions.

(a) General exceptions

• Occupational Requirement
• Religious requirements relating to sex, marriage etc., sexual orientation
• Other requirements relating to religion or belief
• Armed forces
• Employment services

(b) Exceptions relating to age

• Benefits based on length of service
• The national minimum wage: young workers
• The national minimum wage: apprentices
• Redundancy
• Child care
• Contributions to personal pension schemes

(c) Other exceptions

• Non-contractual payments to women on maternity leave
• Benefits dependent upon marital status etc.
• Provision of services etc. to the public
• Insurance contracts, etc.

Services

The Equality Act 2010 (the Act) places a duty upon service providers to not discriminate against service users. The Act defines a service provider as anyone who is concerned with the provision of services to the public or a section of the public. The definition of a service also encompasses the provision of goods and facilities.

A wide range of services are covered by the Act. It does not matter whether the service is provided by a private, public or voluntary organisation and it does not matter whether there is a charge or not for the service.

The Equality and Human Rights Commission (EHRC) Statutory Code of Practice on Services, public functions and associations lists the following (non-exhaustive) examples of a service:- toilet facilities; government departments and their agencies; charities; hotels; restaurants; pubs; post offices; banks; building societies; solicitors; accountants; telecommunications organisations; public utilities; services provided by bus and train operators; railway stations; airports; public parks; sports stadia; leisure centres; advice agencies; theatres; cinemas; hairdressers; shops; market stalls; petrol stations and hospitals.

Public Functions

The Act also places a duty to not discriminate upon those exercising a public function, but only where the exercising of the function does not amount to the provision of a service to the public or a section of the public or where the exercising of the function would be covered under another part of the Act.

Public functions that would meet the definition of a public function for the purposes of the Human Rights Act 1998 are also covered by the Act.

Often a public authority will be exercising a public function by virtue of the fact that the authority is acting under a statutory power or duty, for example when collecting taxes or conducting law enforcement activities.

However public functions are not only carried out by public authorities. Private and/or voluntary organisations may also exercise public functions on behalf of a public authority and would thus be covered in such circumstances. An example of this is where a private company manages a prison or when a voluntary care organisation takes on child protection responsibilities.

Exceptions & Limitations

Age (where the person is younger than 18 years old) and marriage and civil partnership are not relevant protected characteristics for the purposes of the services and public functions provisions of the Act.

Additionally the Act contains several exceptions which, in certain prescribed circumstances, permit discrimination in the provision of services and/or in the exercising of public functions that would have otherwise been prohibited. These exceptions are listed below*.

*The list is intended for illustrative purposes only and you are advised to contact the EASS Helpline for further and more detailed advice on the specifics of and application of the exceptions.

• Constitutional Matters
  • Parliament
  • Judicial Functions
  • Armed Forces
  • Security Services
• Education
• Health & Care
  • Blood Services
  • Health & Safety
  • Care within the Family
• Immigration
  • Age
  • Disability
  • Nationality and Ethnic or National Origins
  • Religion or Belief
• Insurance & other financial services
  • Services arranged by employer
  • Age
  • Disability
  • Existing insurance policies
• Marriage
  • Gender Reassignment: England & Wales
  • Gender Reassignment: Scotland
• Separate, single and concessionary services
  • Separate services for the sexes
  • Single-sex services
  • Gender reassignment
  • Services relating to religion
  • Services generally provided only for persons who share a protected characteristic
  • Concessions
  • Age-related holidays
  • Age-restricted services
  • Residential mobile homes
• Television, radio and on-line broadcasting and distribution
• Transport
  • Transport by air
  • Transport by land

The Premises provision of the Equality Act 2010 (the Act) places a duty upon those with the right to dispose of premises to not discriminate against persons seeking premises.

The Premises provisions of the Act also impose a duty on persons who manage premises to not discriminate against persons who occupies their premises.

Premises means all or part of a property and includes commercial as well as residential property.

A disposal of premises means the selling or letting (including the sub-letting) of premises but also includes the granting of a right to occupy premises, such as via a license or other contractual agreement (e.g. allotments, moorings, caravan parks etc.)

A manager of premises’ duty to not discriminate protects people who are lawful occupants of the premises.

Exceptions & Limitations

Age and marriage and civil partnership are not relevant protected characteristics for the purposes of the Premises provisions of the Act.
The Act also contains several exceptions which, in certain prescribed circumstances, permit discrimination that would otherwise have been prohibited under the Premises provisions. These exceptions are listed below*.

*The list is intended for illustrative purposes only and you are advised to contact the EASS Helpline for further and more detailed advice on the specifics of and application of the exceptions.

• Owner-occupier.
• Small premises

The Equality Act 2010 (the Act) places a duty upon the responsible body of a further and/or higher education provider to not discriminate against students or prospective students.

The duty applies in England and Wales to:

• universities;
• any other institutes within the higher education sector;
• institutions within the further education sector

In Scotland to:

• universities;
• designated institutions;
• and colleges of further education.

The duty applies in regards to admissions policies and criteria as well as the way an institute provides education, disciplinary issues including exclusions as well as any other benefits, facilities and services offered to students.

Exceptions and Limitations

Marriage and civil partnership is not a relevant protected characteristic for the purposes of the further and higher education provisions of the Act.

The Act also contains several exceptions which in certain prescribed circumstances permit discrimination under the schools provisions that would have otherwise been prohibited. These exceptions are listed below*.

*The list is intended for illustrative purposes only and you are advised to contact the EASS Helpline for further and more detailed advice on the specifics of and application of the exceptions

Sex Discrimination

• Admission to single-sex institutions
• Single-sex institutions turning co-educational

Other Exceptions

• Occupational requirements
• Institutions with a religious ethos
• Benefits dependent on marital status etc.
• Child care

Under the Equality Act 2010 (the Act) a General Qualifications Body (GQB) is under a duty to not discriminate. A GQB is an authority or body which can give a relevant qualification. The relevant qualifications in England, Scotland and Wales are specifically listed by the Act and are as follows:-

England

• 14-19 Diploma Principle Learning
• Advanced Extension Awards
• Cambridge International Certificate
• Cambridge Pre-University qualification
• Certificate in Adult Literacy
• Certificate in Adult Numeracy
• Entry level certificates in GSCE subjects
• Extended projects
• Foundation projects
• Free Standing Maths Qualifications
• Functional Skills
• General Certificate of Education Advanced level (Advanced and Advanced Subsidiary levels)
• General Certificate of Secondary Education
• General National Vocational Qualifications
• Higher projects
• International Baccalaureate Diploma
• Key Skills
• Welsh Baccalaureate Qualification Core Certificate

Scotland

• National Qualifications in Scotland, which includes: - Standard Grades and National Courses (Access, Intermediate, Higher, Advanced Higher plus the new National qualifications to be introduced under Curriculum for Excellence from 2013/14). It does not encompass national qualifications which are vocational in nature such as National Qualification Group Awards (National Certificates and National Progression Awards).

Wales

• Advanced Extension Awards
• Entry level certificate qualifications
• Free Standing Maths Qualifications
• Functional Skills
• General Certificate of Education Advanced Level (A and AS Levels)
• General Certificate of Secondary Education
• The International Baccalaureate
• Key Skills and Essential Skills Wales
• Principal Learning and Project Qualifications
• The Welsh Baccalaureate Qualification Core Certificate

If the qualification in question is not one of the ones listed above then the GQB provisions will not be applicable.
Additionally it should be noted that an authority or body is not a GQB and thus the GQB provisions will again not be applicable if the authority or body conferring the qualification is either:-

• the responsible body of a school (for further information as to who is the responsibility of a school please see the page relating to Part 6: Education – Schools); or
• an authority or body is also not a GQB if it is the governing body of a further or higher education institute (for further information as to who is the governing body of such an institute please see the Part 6: Education – Further and Higher); or
• exercising functions under the Education Acts; or
• exercising functions under the Education (Scotland) Act

The Equality Act 2010 (the Act) places a duty on the responsible body of a school to not discriminate against pupils or prospective pupils.

Essentially the Act is intended to cover all schools such as state schools, free schools, academies, independent schools, private schools, faith schools and special schools for example.

The duty applies in relation to admissions policies and criteria as well as the way a school provides education, disciplinary issues including exclusions, school trips and after school clubs/activities etc.

The schools provisions of the Act also apply to LEA funded nursery schools and schools that provide further and higher education (such as schools that have a 6th form for example).

Exceptions & Limitations

Age and marriage and civil partnership are not relevant protected characteristics for the purposes of the school provisions of the Act.

The Act also contains several exceptions which, in certain prescribed circumstances, permit discrimination under the schools provisions that would have otherwise been prohibited. These exceptions are listed below*.

*The list is intended for illustrative purposes only and you are advised to contact the EASS Helpline for further and more detailed advice on the specifics of and application of the exceptions.

Sex Discrimination

• Admission to single-sex schools
• Single-sex boarding at schools
• Single-sex schools turning co-educational

Religious or belief discrimination

• Schools with religious character etc.
• Curriculum, worship, etc.

Disability Discrimination

• Permitted forms of selection

The Equality Act 2010 applies to any association of people if:

• The association has at least 25 members;
• Admission to membership is regulated by the association’s rules and involves a selection process; and
• It is not a trade organisation, such as a business or professional organisation or a trade union.

It does not matter if the association is incorporated or otherwise, or if any of its activities are carried out for profit. It is important to note that associations that are charities are subject to additional provisions under the Act relating to charities.

The requirement for an association to have rules regulating admission to membership does not mean every association must have a formal set of written rules. It will be sufficient if the rules for admission of new members are known by all members involved in the selection process and are regularly and consistently applied.

If members of the public are required to pay a fee join an organisation without any form of selection, for example a gym or nightclub, this is not an association under the Act. These organisations are involved in the provision of services to the public and their duties are covered by the information in ‘Services and Public Functions’. Other examples of groups which would not be covered by the Act are, football supporters club, a book club or a women’s group for walking.

Associations under the Act can include:

• Political Parties;
• Private clubs including sporting clubs, clubs for ex-service personnel, working men’s club, clubs for people with particular interests such as gardening, fishing or music;
• Organisations established to promote the interests of its members such as amateur gymnasts;
• Young people’s organisation’s such as Girl Guides, Scouts or Young Farmers Clubs; or
• Organisations like the Rotary and Inner Wheel Clubs or the Grand Lodges of Freemasons.

The above serve as examples of associations and there are many more which are covered by the Act.

Associations can also be a provider of services, an employer or a training body; an association can be responsible for the disposal or management of premises or the provision of education. The Act prohibits discrimination in all of these areas; when an association carries out any of these functions they will be subject to other parts of the Act.

Application of the Act to Associations

The Act applies to the way in which it treats its members, those seeking to become members, associates or guests or people seeking to become guests.

What is unlawful discrimination by an association?

It is unlawful for an association to discriminate against its members, potential members, associates, guests and potential guests by way of the prohibited conducts defined by the Act:

• Direct discrimination
• Indirect discrimination
• Discrimination arising from disability
• Pregnancy and maternity discrimination or
• Failure to make a reasonable adjustment

It is also unlawful for an association to harass or to victimise its members, people seeking to be members, associates, guest and people seeking to be guests. See the section for harassment and victimisation under prohibited conducts of the website.

Associations may restrict membership to persons who share a protected characteristic.
The Act permits associations of any size or character, other than political parties, to restrict their membership to persons who share a protected characteristic. The only exception is that membership can never be restricted on the basis of colour.

If membership is restricted to those who share a particular protected characteristic, then the association may also restrict the access of associates to a benefit, facility or service and the association may invite as guests or permit to be invited as guests’ only persons who share that same protected characteristic.

It is never lawful for political parties to restrict membership. Please contact the helpline if you require more information regarding this.

Examples:

A squash club with 35 members applies a rule that any potential member must play against two club members who will certify whether their game is of a sufficient standard before a decision is made on their membership application. This club is likely to come within the provisions on associations. Provided the admission rule is applied regularly and consistently by all those involved in the selection process of new members then the Squash club would be acting lawfully.

The constitution of a women’s running club provides for the women members of local mixed sex running clubs to be associates; this would be lawful under the Act. (Equality and Human Rights Commission, Code of Practice)

A wine club meets to specifically drink and discuss the merits of different types of wine. A potential member who has hepatitis B and so cannot tolerate alcohol wishes to join the wine club for social reasons and asks that it expand its activity to include the tasting of fruit juices. This would fundamentally alter the nature of the club and is therefore not a reasonable adjustment which the club is required to make. (Equality and Human Rights Commission, Code of Practice)

Unfavourable treatment because of pregnancy

Under section 18 of the Equality Act 2010 (the Act) an employer discriminates against a woman if, during the ‘protected period’, they treat her unfavourably in relation to ‘a pregnancy of hers’ because of :-

• the pregnancy;
• or because of an illness suffered by her as a result of her pregnancy.

The unfavourable treatment has to occur within the protected period in order to amount to discrimination because of pregnancy. The protected period begins when the pregnancy begins. The protected period ends:-

• at the end of the Ordinary Maternity Leave (OML) period or the end of the Additional Maternity Leave (AML) period; or
• when she returns to work after the pregnancy if that is earlier; or
• where she does not have the right to maternity leave 2 weeks from the end of the pregnancy.

It is also important to note that where a woman is treated unfavourably because of pregnancy or maternity outside of the protected period, if the decision was made during the protected period but implemented outside of the period it is still to be regarded as occurring during the protected period and would be a claim based on the characteristic of pregnancy & maternity. However if the act(s) of unfavourable treatment of a woman because of pregnancy and maternity occurs outside of the protected period it is necessary to consider whether the treatment could amount to sex discrimination.

Unfavourable treatment because of maternity

An employer will also discriminate against a woman if they treat her unfavourably because she is on compulsory maternity leave.

It is also unlawful for an employer to treat a woman unfavourably because:-

• she is seeking to,
• has exercised
• or sought to exercise her right to OML and/or AML.

General Guidance on pregnancy & maternity discrimination

A good way to consider pregnancy & maternity discrimination claims is to ask whether “but for” the pregnancy or pregnancy related illness or but for maternity would she have been treated less favourably. If the answer is arguably no then the treatment may be discriminatory.

The use of the term “pregnancy of hers” effectively means a claim for associative discrimination is not possible with the protected characteristic of pregnancy and maternity. However less favourable treatment because of an association with a pregnant woman or a woman who has recently given birth may give rise to a claim for sex discrimination.

Unlike sex discrimination claims it is not necessary to show that the treatment was unfavourable when compared to how a man, a woman who is not pregnant or any other worker would have been treated.

Limitations and exceptions relating to pregnancy &maternity discrimination

Pregnancy & maternity is not a relevant protected characteristic in regards to the prohibited conduct of harassment. Issues of harassment related to pregnancy should be considered as potentially amounting to unfavourable treatment (see info above).

Additionally the Act contains several exceptions which, in certain prescribed circumstances, permit unfavourable treatment because of pregnancy & maternity that would have otherwise been prohibited. These exceptions are detailed below.

• Non-contractual payments during maternity leave

There is a specific exception relating to the payment of non-contractual benefits to a woman on maternity leave. An employer is not obliged to pay a woman on mate

For the purposes of the services and public functions; premises, education; and associations provisions of the Equality Act 2010 (the Act) a woman is discriminated against if she is treated unfavourably because of a pregnancy of hers.

A woman is also discriminated against if she is treated unfavourably, in the period of 26 weeks beginning with the day on which she gave birth, because:-

• she has given birth; or
• because she is breastfeeding.

A good way to consider such claims is to ask whether “but for” the pregnancy/having given birth/breastfeeding would she have been treated less favourably. If the answer is arguably no then the treatment may be discriminatory.

Unlike sex discrimination claims it is not necessary to show that the treatment was unfavourable when compared to how a man, a woman who is not pregnant or any other person would have been treated.

The use of the term “pregnancy of hers” effectively means a claim for associative discrimination is not possible with the protected characteristic of pregnancy and maternity. However less favourable treatment because of association with a pregnant woman or a woman who has recently given birth may give rise to a claim for sex discrimination.

If the act(s) of unfavourable treatment of a woman because she has given birth and/or is breastfeeding fall outside of the 26 week period beginning with the day on which she gave birth then it is necessary to consider whether the treatment could amount to sex discrimination. For example in regards to breastfeeding where the child is older than 26 weeks any unfavourable treatment because of breastfeeding that child cannot amount to discrimination because of pregnancy. However the Act makes it clear that where there has been unfavourable treatment of a woman because she is breastfeeding, and the baby is 26 weeks old or older, the treatment could still be deemed unlawful if it amounts to direct sex discrimination.

Exceptions applicable to pregnancy & maternity discrimination

The Act contains several exceptions which, in certain prescribed circumstances, permit unfavourable treatment because of pregnancy & maternity that would have otherwise been prohibited.

In regards to exceptions permitting discrimination under the services and public functions provisions of the Act please see the relevant information under the Sector section of the site (add link here……..)

In regards to exceptions permitting discrimination under the premises provisions of the Act please see the relevant information under the Sector section of the site (add link here……..)

In regards to exceptions permitting discrimination under the Education: schools provisions of the Act please see the relevant information under the Sector section of the site (add link here……..)

In regards to exceptions permitting discrimination under the Education: Further and Higher education provisions of the Act please see the relevant information under the Sector section of the site (add link here……..)

Examples:

• A café owner must not ask a pregnant woman to leave his café because she is breast-feeding her baby.
• A shopkeeper must not refuse to sell cigarettes to a woman because she is pregnant.
• A school must not prevent a pupil taking an exam because she is pregnant. (Equality Act 2010, Explanatory Notes)

Direct discrimination is where an employer, service provider or education provider etc. treats a person less favourably because of a protected characteristic, compared to another person in similar circumstances. The definition for direct discrimination is broad enough to include instances where the less favourable treatment is because of the victim’s association with someone who has a protected characteristic or because the victim is thought to have it.

It is not possible for us to include every conceivable scenario here. If you feel that you have been treated unfairly then you should contact the EASS for support and advice on what your options are.

What is less favourable treatment?

Less favourable treatment could be described as treatment which causes a detriment or a disadvantage to a person, when compared to another person. Examples of less favourable treatment could be dismissal, disciplinary action, refusal of service or being expelled etc. However less obvious treatment such as discouraging an employee, treating others preferentially or segregating staff could also be covered.

Was the reason for the less favourable treatment because of a protected characteristic?

The key element in direct discrimination claims is establishing the reason for the less favourable treatment. The Courts and Tribunals adopt a common sense approach, namely asking what was the “real and efficient cause” of the treatment complained of. In some circumstances it will be clear that the reason for the treatment was because of a protected characteristic. However in other instances it is necessary to look at and examine in more detail why the employer, service providers, education provider etc. treated the person less favourably. It is not necessary to prove that an employer, service providers, education provider etc. intended to, or had the motive to (whether conscious or subconscious), treat a person less favourably because of a protected characteristic in order to show direct discrimination.

Additionally the protected characteristic need not be the only reason for the treatment; but the protected characteristic will need to be proved as being a substantive (meaning more than trivial) reason for the treatment.

It is also important to note that unreasonable or poor treatment must be distinguished from less favourable treatment because of a protected characteristic. Just because a person has not been treated fairly or reasonably is not necessarily proof of discrimination.

Similarly a difference in treatment between two people with different protected characteristics is not, on its own, enough to prove that the less favourable treatment complained of was because of a protected characteristic.

Who is the comparator for the less favourable treatment?

It is often the case that a person who has been treated less favourably will have to identify a comparator to help show that they have been directly discriminated against. The comparator can be a real or hypothetical person. The key element to establishing the comparator for the less favourable treatment is that the circumstances in which the less favourable treatment arose must not be materially different.

The purpose of identifying a comparator in direct discrimination claims is to help prove that the less favourable treatment was because of a protected characteristic. If a person has been treated less favourably than someone else, in the same or similar circumstances, and that person does not share their protected characteristic then the reason for the treatment points to being because of a protected characteristic.

Therefore the reason(s) for the less favourable treatment is of vital importance. The relevant circumstances and attributes of a comparator should as far as possible reflect the circumstances and attributes relevant to the reason for the treatment of the person alleging direct discrimination.

Examples:

• If an employer recruits a man rather than a woman because she assumes that women do not have the strength to do the job, this would be direct sex discrimination.
• If a Muslim shopkeeper refuses to serve a Muslim woman because she is married to a Christian, this would be direct religious or belief-related discrimination on the basis of her association with her husband.
• If an employer rejects a job application form from a white man who he wrongly thinks is black, because the applicant has an African-sounding name, this would constitute direct race discrimination based on the employer’s mistaken perception.
• If an employer advertising a vacancy makes it clear in the advert that Roma need not apply, this would amount to direct race discrimination against a Roma who might reasonably have considered applying for the job but was deterred from doing so because of the advertisement.
• If the manager of a nightclub is disciplined for refusing to carry out an instruction to exclude older customers from the club, this would be direct age discrimination against the manager unless the instruction could be justified.

Direct Discrimination by Association and Perception

Association

Associative discrimination is where a person is treated less favourably because of their association with a person with a protected characteristic. The most well-known example of associative discrimination involved an employee who was dismissed because they kept having time off work to look after their disabled child.

Examples:

• A lone father caring for a disabled son has to take time off work whenever his son is sick or has medical appointments. The employer appears to resent the fact that the worker needs to care for his son and eventually dismisses him. The dismissal may amount to direct disability discrimination against the worker by association with his son.

• A manager treats a worker (who is heterosexual) less favourably because she has been seen out with a person who is gay. This could be direct sexual orientation discrimination against the worker because of her association with this person.

Perception

Discrimination by perception is where a person is treated less favourably because of a characteristic the individual is wrongly believed to have. This could include being wrongly deemed to be gay or lesbian or being wrongly believed to be of a particular faith.

Examples:

• An employer rejects a job application from a white woman whom he wrongly thinks is black, because the applicant has an African sounding name. This may be direct race discrimination based on the employer's mistaken perception.
• A woman with a ‘husky’ voice calls her bank to transfer money from one account to another. She is asked to go through additional security checks by the banking advisor as he believes that she is transsexual. The banking advisor refuses to transfer the money even though the woman has successfully completed all the security checks. The woman may have a claim for direct discrimination because of perceived gender reassignment even though she is not transsexual.

Indirect discrimination is where an employer, service provider, education provider etc. applies a seemingly neutral provision, criterion or practice which puts people who share a protected characteristic at a disadvantage.

To show that indirect discrimination has occurred 4 requirements must be satisfied:-

• the employer, service provider, education provider etc. applies (or would apply) a provision, criterion or practice (PCP) equally to everyone within a relevant group (i.e. the PCP applies neutrally to everyone);
• the PCP puts (or would put) people who share a protected characteristic at a particular disadvantage when compared to people who do not have that protected characteristic (i.e. general disadvantage);
• the PCP puts (or would put) an individual with that protected characteristic at a particular disadvantage (i.e. personal disadvantage); and
• the employer, service provider, or education provider etc. cannot show that the PCP is a proportionate means of achieving a legitimate aim (i.e. objective justification)

Requirement 1: PCP Applies Neutrally to Everyone

A provision could be a condition or requirement such as a formal contractual term; it could be non-contractual policies; or it could be general rules and guidelines. Criteria could be a job specification used in recruitment or decisions made regarding promotions or bonuses; it could be factors used when deciding whether to discipline or dismiss employees.

A practice is more informal and can include all of the above where the provisions and standards are not formally laid down; it could be a one off decision or a discretionary decision; and may include decisions to do something in the future.

It is vitally important that the PCP applies (or would apply) equally to everyone within a relevant group regardless of whether or not they have the protected characteristic in question. Essentially the PCP must be neutral.

Example: A factory owner announces from month all male staff must be clean shaven. This is an example of a policy that has not yet been implemented but which can be considered as a provision, criterion or practice. The decision to introduce the policy indirectly discriminates because of religion or belief, as it puts the employer’s Sikh workers at a disadvantage. The employer must show that the provision, criterion or practice can be objectively justified.

Requirement 2: General Disadvantage

The second element of indirect discrimination requires a person to prove that a group of people who share their protected characteristic are put, or would be put, at a particular disadvantage by the PCP when compared to a group of people who do not share their protected characteristic.

Following on from the identification of the PCP it is then essential to identify all the people to whom the PCP does or could apply to. This is what is commonly known as “the pool for comparison”.

The pool of comparison should consist of all the people that the PCP affects or would affect, regardless of whether the effect is positive or negative. The pool should not be limited to only those who are disadvantaged, as this leaves no room for a proper analysis of whether the group with the protected characteristic suffers a greater disparate impact as a result of the PCP compared to the disparate impact suffered by the group who do not share the protected characteristic. Similarly the pool of comparison should not contain people who are not affected at all by the PCP.

Once the pool for comparison has been identified you can move onto establishing whether the group the person belongs to is, or would be, put at a particular disadvantage by the PCP.

This is commonly done via a statistical approach. However this is not the only approach and a tribunal may be willing to take into account common or general knowledge that people with certain protected characteristics will be at more of a disadvantage than those without that protected characteristic.

However if this approach is adopted care must be taken to ensure generally accepted knowledge or facts are not merely general assumptions that are outdated and/or based on stereotypical or prejudiced beliefs.

An approach regularly used by the Employment Tribunal is to ask the following questions:-

• what proportion of the pool has the relevant protected characteristic in question?;
• what proportion of the pool does not have the relevant protected characteristic in question?;
• how many of the people within the pool with the relevant

protected characteristic are or would be affected by the PCP?; and

• how many of the people within the pool do not have the relevant protected characteristic but are or would be affected by the PCP?

The answers to these questions will give you the number of people within the advantaged and disadvantaged groups that you need to compare.

If the number or proportion of people with the relevant characteristic who are, or would be, affected by the PCP is higher than or more than the number or proportion of people who do not have the relevant protected characteristic who are, or would be, affected then this element of indirect discrimination would be satisfied.

Example: A single mother of two young children is forced to resign from her job as a train driver when she cannot comply with her employers’ new shift system.

The shift pattern is a provision, criterion or practice which causes particular disadvantage to this single moither. In an indirect discrimination claim, an Employment Tribunal must carry out a comparative exercise to decide whether the shift system puts (or would put) workers who share her protected characteristic of sex at a particular disadvantage when compared with men.

The Employment tribunal decided to use as a pool for comparison all the train drivers working the same employer. There are 20 female train drivers, while 2,000 are men.
It is accepted as common knowledge that men are far less likely than women to be single parents with childcare responsibilities.

• Of the 2,000 male drivers, two are unable to comply with the new shift system. This is expressed as a proportion of 0.001
• Of the 20 female train drivers, five are unable to comply with the new shift system. This is expressed as a proportion of 0.25

It is clear that a higher proportion of female drivers (0.25) than male drivers (0.001) are unable to comply with the shift system.

Taking all this into account, the Employment Tribunal decided that female train drivers in comparison to their male counterparts are pout at a particular disadvantage by the shift system. (London Underground Ltd v Edwards)

Requirement 3: Personal Disadvantage?

This requirement will be satisfied if an individual can show that they, as a person with the relevant protected characteristic, have suffered or would suffer a particular disadvantage due to the PCP.

Example: A woman cannot claim that the imposition of a new shift pattern at work is indirectly discriminatory because the PCP places women with child care responsibilities at a disadvantage if she does not have child care responsibilities).

Requirement 4: Objectively Justified

If the above three requirements can be established then the question will become whether or not the PCP can be objectively justified by the employer, service provider or education provider etc. Whether the PCP can be objectively justified will depend upon the PCP being proven to be a proportionate means of achieving a legitimate aim.

The aim of the PCP should be legal, should not be discriminatory in itself and must represent a real, objective consideration. Reasonable business needs and economic efficiency may be legitimate aims. However an employer solely aiming to reduce costs is unlikely to satisfy the test. A legitimate aim may also be derived from a statutory duty that has to be complied with.

Even if the aim is a legitimate one, the means of achieving it must be proportionate. EU law views treatment as proportionate if it is an ‘appropriate and necessary’ means of achieving the legitimate aim. But ‘necessary’ does not mean that the provision, criterion or practice is the only possible way of achieving the legitimate aim; it is sufficient that the same aim could not be achieved by less discriminatory means.

Deciding whether the means used to achieve the legitimate aim are proportionate involves a balancing exercise. A proper evaluation of the discriminatory effect of the provision, criterion or practice as against the employer’s reasons for applying it, taking into account all the relevant facts will be required.

Example: As a cost saving measure, an employer requires all staff to work a full day on a Friday, so that customer orders can all be processed on the same day. This policy puts observant Jewish workers at a particular disadvantage in the winter months by preventing them from going home early to observe the Sabbath and could amount to indirect discrimination unless it can be objectively justified. The single aim of reducing costs is not a legitimate one; the employer cannot just argue that to discriminate is cheaper than avoiding discrimination.

Harassment & Sexual harassment

Harassment is defined under the Equality Act 2010 (the Act) as unwanted conduct related to a protected characteristic that has the purpose, or effect, of either:-

• violating a person’s dignity; or
• creating an intimidating, hostile, degrading, humiliating or offensive environment

When is harassment not a relevant prohibited conduct?

Harassment is not a relevant prohibited conduct in regards to the protected characteristics of pregnancy & maternity and marriage & civil partnership, regardless of the sector.

In regards to certain specific sectors then religion or belief and sexual orientation are not relevant protected characteristics in relation to harassment in services and public function cases; premises cases; or association cases.

Gender reassignment, religion or belief and sexual orientation are also not relevant protected characteristics for the purpose of schools cases.

* In the above circumstances where you cannot argue harassment then it could be argued as direct discrimination instead. Please see the section of the website relating to the prohibited conduct of direct discrimination.

What is unwanted conduct?

Unwanted conduct covers a wide range of behaviour, including for example spoken or written words or abuse, imagery, graffiti, physical gestures, facial expressions, mimicry, jokes, pranks or other physical behaviour (not an exhaustive list).

When does unwanted conduct have the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment?
The unwanted conduct must have been either:-

• intended to violate dignity or create an intimidating, hostile, degrading, humiliating or offensive environment; or
• had the effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

The Act specifically lists several factors that should be considered when determining whether unwanted conduct has had the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. These factors are:-

• the perception of the person who has been subjected to unwanted conduct;
• all the other relevant circumstances of the case; and
• whether it is reasonable for the conduct to have had an effect

In regards to determining whether the unwanted conduct had the purpose of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment then the intention of the harasser is of upmost importance. The key question is whether the conduct was deliberately designed to/intended to violate dignity or create an intimidating, hostile, degrading, humiliating or offensive environment. It does not matter that it did not have the desired effect; it’s the intent that is key.

When considering whether the unwanted conduct actually had the effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment the question of whether the conduct has had the effect is an objective (not subjective) test.

Whilst the perception and feelings of the person who has been subjected to the conduct in question are taken into account the more important consideration is whether the conduct can be reasonably considered to have had the effect. This is, simply put, a test of whether the individual is perhaps being overly sensitive or overreacting.

When assessing the effect of unwanted conduct the context in which it occurred or the circumstances in which took place is always highly relevant too. Everyday experience tells us that a humorous remark between friends may have a different effect to exactly the same words spoken vindictively.

Example: In front of her male colleagues, a female mechanic is told by her supervisor that her work is below standard and that, as a woman, she will never make a competent mechanic. Her supervisor then goes on to say that she should stay at home and bring up the babies. This could amount harassment related to sex as the statement itself would be unwarranted and the mechanic could object to it before it was deemed to be unlawful harassment.

What does "related to a protected characteristic" mean?

The term “related to a protected characteristic” has a broad meaning and can even encompass situations where the person subject to the harassment does not have the protected characteristic to which the unwanted conduct relates. There are essentially 2 broad scenarios in which harassment can be deemed to be “related to a protected characteristic”. These are explained below:-

• where the unwanted conduct is related to the person’s own protected characteristic
• where there is any connection with a protected characteristic

"Any connection with a protected characteristic" , means that the person does not necessarily have to have the protected characteristic to which the unwanted conduct relates. So harassment could occur where an individual is subjected to unwanted conduct because of their association with someone who has a protected characteristic.
Harassment could also occur where an individual is wrongly perceived as having a protected characteristic or where an individual is known not to have the protected characteristic but is nevertheless subjected to unwanted conduct related to that protected characteristic.

Additionally harassment could also occur where the unwanted conduct is not directed at an individual but at another person or no person in particular but an individual takes offence.

Examples:

• If a worker with a walking frame is verbally abused because of the way he walks with his frame, this could amount to harassment related to his disability. (Equality and Human Rights Commission, Code of Practice)

• If during a briefing session attended by all employees, the male trainer makes a number of remarks of a sexual nature to the whole group. A female employee finds the comments offensive and humiliating to her as a woman. She would be able to make a claim for harassment, even though the remarks were not directed at her. (Equality and Human Rights Commission, Code of  Practice)

Sexual Harassment

Simply put this is where the unwanted conduct is of a sexual nature. Sexual harassment will also be unlawful if, because of a person’s rejection of or submission to unwanted conduct of a sexual nature, they are treated less favourably than they would have been had they not rejected or submitted to the conduct.

Examples: A shopkeeper propositions one of his shop assistants. She rejects his advances and is then turned down for promotion which she believes she would have got if she had accepted her boss’ advances. The shop assistance would have a claim of harassment. (Equality Act 2010, Explanatory Notes)

Under the Equality Act 2010 (the Act) victimisation occurs where an employer, service provider, education provider etc. subjects a person to a detriment because they have done, or may do, ‘a protected act’.

The Act defines each of the below as being a ‘protected act’:-

• bringing proceedings under the Act;
• giving evidence or information in connection with proceedings under the Act;
• doing any other thing for the purposes of or in connection with the Act; or
• making an allegation (whether or not express) that A or another person has contravened the Act

Has a ‘protected act’ been done?

Whilst it is generally the case that the protected act is in regards to the alleged discriminatory treatment of the individual themselves, the protected act need not be in regards to a complaint that they themselves have been discriminated against. Therefore a person could be victimised if the protected act was done in relation to a third person and the alleged discriminatory treatment of that third person.

Important to note that the protected act does not necessarily need to have been done, it is enough that the employer, service provider, education provider etc. thinks the protected act has been done, or thinks a protected act will be done.

A protected act has to be done in good faith. However if say an allegation is later proved to be unfounded, factually wrong or proved to have not been discriminatory by a court or tribunal it will still be deemed a protected act. You do not have to have a provable discrimination complaint for the action to be deemed a protected act.

Has the person been subjected to a detriment because of the protected act?

The meaning of detriment is not defined in the Act but is generally seen as being anything which the person who is claiming victimisation could reasonably argue as changing their position for the worse or as putting them at some disadvantage.

The key issue is proving that the detriment suffered by the individual is because of the protected act. The reason for the detriment needs to be proved as being, at least in part, as a result of the protected act.

It does not matter how much time has elapsed between the doing of the protected act and the detrimental treatment; it simply remains the case that the individual would need to show the link between the detriment and the protected act.

Examples:

Victimisation in Services: A gay man sues a publican for discrimination on the basis that she makes persistent derogatory remarks to other customers about his sexuality. Because of this, the publican bars him from the pub altogether. This would be victimisation. (Equality and Human Rights Commission, Code of Practice)

Victimisation of pupils: The parent of a pupil complains to the school that her daughter is suffering sex discrimination by not being allowed to participate in a metalwork class. The daughter is protected from being treated less favourably by the school in any way because of this complaint. (Equality Act 2010, Explanatory Notes)

Victimisation of workers: A non-disabled worker gives evidence on behalf of a disabled colleague at en employment tribunal hearing where disability discrimination is claimed. If the non-disabled worker is subsequently refused a promotion because of that action, they would have suffered victimisation in contravention of the Act. (Equality and Human Rights Commission, Codes of Practice)